Leonard Cohen's Secret Life: Private Jets, Incredibly Wealthy Lawyers On His Payroll, & A Moronic Attempt to Prove He/His Lawyers Are Not Involved With the Criminal Stalker, et al.

From: Kelley Lynch <kelley.lynch.2013@gmail.com>
Date: Sat, Sep 19, 2015 at 11:24 PM
Subject: 
To: Michelle Rice <mrice@koryrice.com>, "*irs. commissioner" <*IRS.Commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, ": Division, Criminal" <Criminal.Division@usdoj.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>, MollyHale <MollyHale@ucia.gov>, nsapao <nsapao@nsa.gov>, fsb <fsb@fsb.ru>, rbyucaipa <rbyucaipa@yahoo.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, "glenn.greenwald" <glenn.greenwald@firstlook.org>, Harriet Ryan <harriet.ryan@latimes.com>, "hailey.branson" <hailey.branson@latimes.com>, Stan Garnett <stan.garnett@gmail.com>, mike.feuer@lacity.org, "mayor.garcetti" <mayor.garcetti@lacity.org>, OPLA-PD-LOS-OCC@ice.dhs.gov, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, Whistleblower <whistleblower@judiciary-rep.senate.gov>, Attacheottawa <AttacheOttawa@ci.irs.gov>, tips@radaronline.com, Paulmikell.A.Fabian@irscounsel.treas.gov

Michelle Rice,

Let me know if there is anything you would like to discuss directly or specifically.  I must say I'm surprised Cohen paid you for these emails.   One correction - you didn't register the fraud domestic violence order properly.

Kelley Lynch

NOTE:  Lynch never called Rice a child molester.  Lynch never harassed her Criminal Stalker.  And, Lynch is most certainly not jealous of a woman as embarrassing as Michelle Rice.

From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Sat, Sep 19, 2015 at 9:22 PM
Subject: Your claim that I am simply "covering up" my "real party involvement" with "cover your ass emails"
To: kelley.lynch.2010@gmail.com

Ms. Lynch,

You could not be more wrong.

If I were you I would concentrate more on the legal authorities I have transmitted to you, and their implications for your motion, than my motive in transmitting them.

---Forwarded message---

From: Michelle Rice <mrice@koryrice.com>
To: Stephen Gianelli <stephengianelli@gmail.com> 
Cc: Robert Kory <rkory@koryrice.com>; Dan Bergman <DBergman@bergman-law.com> 
Sent: Friday, July 24, 2015 11:17 PM
Subject: Re: So where is your oft threatened, but never quite filed "motion to vacate the fraud domestic violence matter"? (See 4/14/2015 email)

Stephen:

No, Stephen, it is your ego that is in the way here.  

The reason Robert requested you only email him is because you were sending dozens of emails to me a day sending me unsolicited emails regarding Kelley Lynch, which I did not even read.  Your fixation on Kelley Lynch is truly pathological. 

The truth is Stephen, now that the gloves are off, so to speak, is that you did not have the balls or the "juice" to get her arrested when she was harassing you for years in San Francisco.  I have all of the emails where you were reporting her to the police, FBI, etc.  All to no avail.  Some big criminal lawyer you are.  You did not have any viable contacts in law enforcement that could help you out after your long self-proclaimed illustrious career as a criminal lawyer ?

It took little ole me - the lawyer who you claim produces "workmanlike" product for my client - to get Lynch arrested.  Through connections I made.  That's right, I got it done.  In fact you wrote me following her March 1, 2012 arrest in Berkeley expressing your surprise (still have that email, shall I send it to you, with a copy to Dan, to refresh your memory?) that I was able to get it done when you could not.  So your claiming now that you were instrumental in getting her arrested is nothing more than assuaging your own fragile ego.  Your pathological jealousy of me is as sick as Lynch's jealousy of our firm's success as Leonard's lawyers, managers, and representatives.  Throughout our ten year tenure Leonard was inducted into the Rock N Roll Hall of Fame, achieved the Grammy Lifetime Achievement Award, saw his album Old Ideas debut on Billboard at Number 2, behind Lana Del Rey, the highest charting album of Leonard's entire career.  And yes, I attended all of those events.  You did not Stephen.

Now that we are speaking truth and dispensing with civilities - I will say it - you have been trying for years to take credit for my work because unlike you, I do not self-promote my considerable successes, but rather let has-runs and never-weres like yourself step in to try to get a little bit of my considerable light.  Shamelessly discussing with Leonard Cohen fans on your blog what actor is going to play you in any Cohen-Lynch bio-pic.

What a shameless starf*ker you are.  The cold, hard truth of the matter is your career was nowhere and you glommed onto the Cohen-Lynch matter and my successes seeking your proverbial 15 seconds of fame.

So do not think we have not seen your shameless self-promoting postings on leonardcohenfiles.com as if you had anything to do with any of the ten years' worth of litigation involving Cohen/Lynch.

I did not need anyone's help to properly register the out-of-state restraining order.  It is properly registered as you have repeatedly stated in your numerous bloviated emails regarding the restraining order that you did not file.

By the way, I also did not need any help flying with Leonard Cohen on a private jet from Burbank to Denver in August and September 2008 to get the permanent restraining order in Colorado either. 

Dan: your firm is fired and you are no longer needed in BC 338322 and BC 341120.  Please prepare your notice of withdrawal for filing Monday.  Robert and I have been discussing in private how little your firm contributed to the recent effort against Lynch.  I did all of the work and drafted the two dispositive filings, including the Opposition and Sanctions Motion.  The only motion that was barely passable was the Motion to Seal and even then it was barely literate.  Robert and I were shocked that you proposed to file a declaration for LC's signature with a sentence "Lynch refused to return documents to him."   You will not be assisting in either the restraining order matter, the appeals, nor in the federal court RICO suit she has threatened to file because I did a PACER search and none of your attorneys, including yourself, have done any litigation in federal courts. I have over ten years in federal district courts all over the country, including in Colorado, Nevada, New York and California.

P.S. I do not want to tell you what Leonard Cohen is paying me to defend him in all of the litigation against Lynch, a rate I can command because of my previous record of success.  Suffice it to say, it would make both of you sick with more envy than you already seem to have. 

Yours very truly,

Michelle L. Rice, Esq.
Kory & Rice LLP
9300 Wilshire Blvd., Suite 200
Beverly Hills, CA 90212
Phone: (310) 285-1633
Fax: (310) 278-7641

From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Sat, Sep 19, 2015 at 9:39 PM
Subject: Your recent blog posted email claiming a "cover your ass" email
To: kelley.lynch.2010@gmail.com

FYI

---Forwarded message---

From: Michelle Rice [mailto:mrice@koryrice.com] 
Sent: Saturday, July 25, 2015 11:35 AM
To: Stephen Gianelli
Subject: Re: So where is your oft threatened, but never quite filed "motion to vacate the fraud domestic violence matter"? (See 4/14/2015 email)

And who cannot control their emotions?  Booo hooo Kelley Lynch called me a child molester in emails that no one ever reads....

Boooo fucking hoooooo...... man up and put on your big boy pants and shut the f*&k up.

Do me a favor and keep inciting her to file more motions, you are making me richer than f&^k.  In fact, I think I can pay off my mortgage on my $2 million Hollywood Hills home with jetliner views by the end of this year.

Michelle L. Rice, Esq.
Kory & Rice LLP
9300 Wilshire Blvd., Suite 200
Beverly Hills, CA 90212
Phone: (310) 285-1633
Fax: (310) 278-7641

A Helpful Criminal Stalker Or A Rotten Liar With Motive?

From: Kelley Lynch <kelley.lynch.2013@gmail.com>
Date: Sat, Sep 19, 2015 at 8:42 PM
Subject: 
To: "*irs. commissioner" <*IRS.Commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, ": Division, Criminal" <Criminal.Division@usdoj.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>, MollyHale <MollyHale@ucia.gov>, nsapao <nsapao@nsa.gov>, fsb <fsb@fsb.ru>, rbyucaipa <rbyucaipa@yahoo.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, "glenn.greenwald" <glenn.greenwald@firstlook.org>, Harriet Ryan <harriet.ryan@latimes.com>, "hailey.branson" <hailey.branson@latimes.com>, Stan Garnett <stan.garnett@gmail.com>, mike.feuer@lacity.org, "mayor.garcetti" <mayor.garcetti@lacity.org>, OPLA-PD-LOS-OCC@ice.dhs.gov, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, Whistleblower <whistleblower@judiciary-rep.senate.gov>, Attacheottawa <AttacheOttawa@ci.irs.gov>, tips@radaronline.com, Paulmikell.A.Fabian@irscounsel.treas.gov

IRS, FBI, and DOJ,

Now that the "party at interest" is in his helpful mode I will put together a private blog with all emails I have maintained re. his, Susanne Walsh, et al's criminally harassing emails.  Third parties are evidently now supposed to view Gianelli as "helpful."  Does it really "help" me to quote a case I raised in my motion?  I'm referring to Fidelity Creditor Service v. Browne.  Did it help when he assisted Paulette's former roommate in defrauding her of $6,700 (after the woman spoke to Robert Kory)?  DId it help when this criminal attempted to insert himself into Rutger's Whole Food matter?  Did it help when a stranger, who could be a sexual predator, attempted to lure my then minor son into communicating with him and then offered his services in his alleged custody matter although he doesn't know my sons?  Did that help?  Was he being helpful when he began lying to my alleged prosecutor?  Was he being helpful when he attempted insert himself into the Tax Court matter and contacted Mr. Fabian?  

Perhaps Gianelli has being helpful when he attempted to insult, slander, intimidate, and threaten witnesses?  I don't think my witnesses really found it all that helpful.  This man is a pathological liar with motive.  He is now attempting to appear helpful so that people don't assume he's in a "legal conspiracy" with Cohen, Kory, Rice, et al.  His interest in the process server and witnesses who will offer oral testimony is fairly unique.  Perhaps he would like to criminally harass them also.  I'm sure Judge Hess would approve of that if he believes I was served.

None of this resolves the fact that Cohen used the fraud Complaint narrative to obtain fraudulent tax refunds and defend himself with IRS.  Those issues have not been litigated and are federal tax matters.  The same is true for Cohen's willful refusal to provide me with IRS required tax information, rescind the LCI K-1s, and provide me with information about the secretly rectified mistake about my ownership interest in TH.  I would also like to have answers to all the questions Kory raised in the January 2005 memorandum with Ira Reiner copied in.  Where did they conveniently arrive at all answers that benefited Cohen?  Did the evidence change? 

All the best,
Kelley

From: Stephen R. Gianelli [mailto:stephengianelli@gmail.com] 
Sent: Friday, September 18, 2015 12:48 PM
To: kelley.lynch.2010@gmail.com
Subject: Pending motion to vacate renewal of J; this case alters my formerly expressed view of your motion

See the attached case, Fidelity Creditor Service, Inc. v. Browne, FYI. Under its reasoning:

1. A motion to vacate the renewal of a judgment is NOT CONSIDERED to be a motion to vacate the judgment and is therefore not governed by time limits for motions to vacate the judgment such as those provided by section 473.5. This is because the motion does not seek to affect the judgment itself but only the renewal period. For the same reasons one would have AN ARGUMENT that a motion to vacate the renewal of a judgment is not a motion to reconsider a previously denied motion to vacate the judgment itself, but the case does not address that issue.

2. The moving party need not demonstrate the existence of a meritorious defense.

3. There is no “due diligence” requirement in filing the motion “earlier” (e.g., after learning of the judgment) because the legislature has explicitly provided for a 30-day time window from the date mailing  of notice of renewal of the motion to file it, and the motion is either filled within that statutory time or it is not.

4. Unlike in the cited case (attached), the fact of valid service is DISPUTED – so the moving party still needs to overcome the presumption of valid service created by the proof of service filed by the registered process server. And Judge Hess could still defeat the motion by weighing the evidence and concluding that the moving declarations failed to overcome the presumption in favor of proper service.

5. Res judicata should not be a factor because NO ORDER SETTING FORTH JUDGE HESS’ JANUARY 17, 2014 RULING DENYING THE MOTION TO VACATE was ever signed or filed – let alone served. (See the on-line docket “case summary”.) A proposed order was lodged, but NO SIGNED ORDER WAS EVER FILED AND IT WOULD APPEAR THAT NO ORDER WAS EVER SIGNED. Since there was no ORDER DENYING THE MOTION entered, no final, appealable order was ever entered – and (arguably) therefore there was no prior finding of proper service.

Kelley Lynch's Email to Dennis Riordan, Phil Spector's Appellate Attorney, Re. Louis Spector's Girlfriend's Hateful Communications Which Are Being Circulated On The Internet

From: Kelley Lynch <kelley.lynch.2013@gmail.com>
Date: Sat, Sep 19, 2015 at 4:31 PM
Subject: 
To: Dennis <Dennis@riordan-horgan.com>, "*irs. commissioner" <*IRS.Commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, ": Division, Criminal" <Criminal.Division@usdoj.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, MollyHale <MollyHale@ucia.gov>, nsapao <nsapao@nsa.gov>, fsb <fsb@fsb.ru>, rbyucaipa <rbyucaipa@yahoo.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, "glenn.greenwald" <glenn.greenwald@firstlook.org>, Harriet Ryan <harriet.ryan@latimes.com>, "hailey.branson" <hailey.branson@latimes.com>, Stan Garnett <stan.garnett@gmail.com>, mike.feuer@lacity.org, "mayor.garcetti" <mayor.garcetti@lacity.org>, OPLA-PD-LOS-OCC@ice.dhs.gov, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, Whistleblower <whistleblower@judiciary-rep.senate.gov>, Attacheottawa <AttacheOttawa@ci.irs.gov>, tips@radaronline.com

Mr. Riordan,

This message that Freda Singer sent Theodore Ey is making its way around the internet.  She and Louis Spector (who Gianelli has written me about) celebrated Phillip's verdict.  What is wrong with these people?  Does the woman know Phillip at all? Why is she attempting to stop people from posting positive things about Phillip?  That does seem to be an ongoing issue on the internet.  If you'll recall I noticed that Michelle Blaine was posting on Gianelli's blog in 2009.  That led to his communications with Michelle Rice and then Gianelli/Blaine targeted my email accounts and blogs.  Was he being "helpful" then?  Or just now so third parties, such as the IRS Chief Trial Counsel's office, fall for a moronic COVER YOUR ASS operation?

Kelley

Theodore Ey who has the All Things Phil Spector page, received a private message from Frida Singer, Louis pector's girlfriend:

" Would GREATLY appreciate if you would stop posing to your page as if PHILLIP is some GOD. for GODS sake when he was sentenced, I KISSED louis on the lips, we were both ECSTATIC. STOP worshipping this murderer that is PHIL SPECTOR

Kelley Lynch's Email to Leonard Cohen's Lawyer Re. Their Latest False Accusations & Request for Information Since Edeman's Declaration Is Merely Hearsay

From: Kelley Lynch <kelley.lynch.2013@gmail.com>
Date: Sat, Sep 19, 2015 at 3:50 PM
Subject: 
To: Michelle Rice <mrice@koryrice.com>, sedelman <sedelman@gibsondunn.com>, "*irs. commissioner" <*IRS.Commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, ": Division, Criminal" <Criminal.Division@usdoj.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>, MollyHale <MollyHale@ucia.gov>, nsapao <nsapao@nsa.gov>, fsb <fsb@fsb.ru>, rbyucaipa <rbyucaipa@yahoo.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, "glenn.greenwald" <glenn.greenwald@firstlook.org>, Harriet Ryan <harriet.ryan@latimes.com>, "hailey.branson" <hailey.branson@latimes.com>, Stan Garnett <stan.garnett@gmail.com>, mike.feuer@lacity.org, "mayor.garcetti" <mayor.garcetti@lacity.org>, OPLA-PD-LOS-OCC@ice.dhs.gov, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, Whistleblower <whistleblower@judiciary-rep.senate.gov>, Attacheottawa <AttacheOttawa@ci.irs.gov>, tips@radaronline.com, Paulmikell.A.Fabian@irscounsel.treas.gov

Michelle Rice,

I intend, as I notified you, to take oral testimony at the October 6, 2015 trial.  You have falsely accused me of fabricating or forging declarations.  I submitted the limited powers of attorney and original signature pages to the Court but this issue is not over and is an example of your willingness and your client's to say and do anything. 

Edelman's declaration was hearsay.  May I have the name of the individual Chad Knaak spoke to.  I have other witnesses I may want to call and that individual should be on the stand about the phone call from Chad Knaak advising Gibson, Dunn that I was NOT SERVED.

I am, as Gianelli knows, attempting to locate the process server.  I spoke to First Legal yesterday and that information appears to have made its way to Gianelli.  His attempts to prove "helpful" are merely transparent attempts to cover up his "party at interest" involvement here.  Gianelli should continue to argue this with the IRS Chief Trial Counsel's office.  

Kelley Lynch

THE CRIMINAL STALKER WANTS PEOPLE TO NOW BELIEVE HE IS MERELY BEING "HELPFUL."  

From: Stephen Gianelli <stephengianelli@gmail.com>
Date: Sat, Sep 19, 2015 at 1:21 PM
Subject: 
To: Kelley Lynch <kelley.lynch.2010@gmail.com>

Ms. Lynch,

You have one shot at making your case that you were not served on October 6.

I strongly suggest that you do not rely on the same evidence and arguments that have failed to persuade Judge Hess in the past. 

The reason for this any lawyer can explain to you. On appeal, the appellate panel is REQUIRED to accept Judge Hess' factual findings if they are supported by ANY substantial evidence. That would include the 2005 affidavit of service. 

And Ms. Lynch, I have always been "helpful" in that I have given you my honest view of things based on 35 years as a trial lawyer. It was often not what you wanted to hear. But my predicted litigation outcomes have been right in your various matters 100% of the time. 

Don't get me wrong, I personally believe that you were served with the summons and complaint in the manner provided by law and in my opinion Judge Hess believes that as well. He has all but said so on the record. 

However, unlike your prior unsuccessful motions to vacate the judgment, which were procedurally flawed ‎due to your waiting so long to file, your motion to vacate the RENEWAL is not subject to the same procedural obstacles. 

You are therefore entitled to have the fact of service adjudicated. 

But you have one shot at it your day in court. 

You will either succeed in persuading Judge Hess that you were not served or you will not. 

I strongly suggest that you make the most of the opportunity and focus on that issue rather than these dead ends that seem to bog you down. 

Frankly, based on your blog posts and emails so far I don't think you have the capacity to do so. 

So prove me wrong on October 6 by doing something different that will be a game changer for Judge Hess.

Sent from my BlackBerry 10 smartphone.

THE CRIMINAL STALKER APPEARS TO UNDERSTAND THAT I SPOKE TO THE PROCESS SERVER'S OFFICE YESTERDAY ABOUT A SUBPOENA AND LEON MOORE:

From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Sat, Sep 19, 2015 at 8:03 AM
Subject: Process server - SERVICE INFORMATION
To: kelley.lynch.2010@gmail.com

LEON MOORE

First Legal Support Services

1511 West Beverly Boulevard

Los Angeles, California 90026

POSSIBLE RESIDENTIAL ADDRESS: 12141 Centralia Street, Lakewood, CA 90715 (UNVERIFIED)

THE CRIMINAL STALKER ATTEMPTS TO ELICIT INFORMATION BY APPEARING TO BE HELPFUL NOW.

From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Sat, Sep 19, 2015 at 6:36 AM
Subject: 
To: kelley.lynch.2010@gmail.com

Have you considered (in addition to timely  filing and serving the required notice under California Rules of Court, Rule 3.1306 (b) (see below for text), serving a subpoena on the process server who filed the affidavit of service asserting that he served “Jane Doe”) at your residence and then mailed a copy of the summons and complaint to that address?

Because barring that, I don’t thing Judge Hess is going to accept your factual claim on service. He has already said as much in the last hearing transcript. (See e.g., page 8 lines 18-20.)

TEXT OF California Rules of Court, Rule 3.1306 (b)

A party seeking permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing.

Kelley Lynch's Email To IRS Chief Trial Counsel's Office Re. Leonard Cohen, Ongoing Lies, Fraud & Perjury, & Her Decision To Ask Criminal Stalker Stephen Gianelli To Submit A Retainer Agreement

From: Kelley Lynch <kelley.lynch.2013@gmail.com>
Date: Fri, Sep 18, 2015 at 1:58 PM
Subject: Re:
To: STEPHEN GIANELLI <stephengianelli@gmail.com>, Michelle Rice <mrice@koryrice.com>, Paulmikell.A.Fabian@irscounsel.treas.gov, "*irs. commissioner" <*IRS.Commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, ": Division, Criminal" <Criminal.Division@usdoj.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>, MollyHale <MollyHale@ucia.gov>, nsapao <nsapao@nsa.gov>, fsb <fsb@fsb.ru>, rbyucaipa <rbyucaipa@yahoo.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, "glenn.greenwald" <glenn.greenwald@firstlook.org>, Harriet Ryan <harriet.ryan@latimes.com>, "hailey.branson" <hailey.branson@latimes.com>, Stan Garnett <stan.garnett@gmail.com>, mike.feuer@lacity.org, "mayor.garcetti" <mayor.garcetti@lacity.org>, OPLA-PD-LOS-OCC@ice.dhs.gov, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, Whistleblower <whistleblower@judiciary-rep.senate.gov>, Attacheottawa <AttacheOttawa@ci.irs.gov>, tips@radaronline.com

Mr. Fabian,

Perhaps this Criminal wants me to believe that he would like to represent me now.  I've asked him to send a retainer agreement if that's the case.  It might be a more expedient manner with which to infiltrate, sabotage, witness tamper, elicit information, discover evidence, determine what IRS Chief Trial Counsel's office and I have discussed or shared, etc.  I personally do not want the assistance of a criminal and/or rotten logician.  I now plan to ask the Court to permit all of my witnesses to provide oral testimony at the October 6, 2015 hearings - including with respect to Cohen's false accusations that the declarations were fabricated and/or forged.

As for my federal RICO suit, I will ask the Court to have Cohen provide the corporate accountings, financial statements, and IRS required documents (1099, etc.) he was obligated to provide me with.  

Have a good day.  I'll forward you the retainer agreement if Gianelli prepares and sends one.  He's being so "helpful" now that I've received his and Rice's moronic cover-your-ass letters that prove they attempted to provoke and incite me, my sons, and others.  

All the best,

Kelley

On Fri, Sep 18, 2015 at 1:54 PM, Kelley Lynch <kelley.lynch.2013@gmail.com> wrote:

Stephen Gianelli,

I have received your criminally harassing emails from this morning re. Tax Court and the motion to vacate the renewal of the judgment.  I am pro per in the first matter and Michelle Rice is the attorney of record in the second matter.

What is your latest tactic here?  Would you like to represent me now?  Is that a more expedient method to infiltrate, sabotage, contact witnesses, review evidence, or determine what I am speaking to Mr. Fabian about?  If so, hit reply all and send me a retainer agreement.  I'll give it some thought.  Otherwise, I'll assume this is an additional effort to cover your ass.

Are you interested in the declarations submitted to LA Superior Court?  Well, I also submitted the limited powers of attorney, attached hereto, as evidence that Cohen and his lawyers will lie about everything. I've submitted the declarations, original signatures, and limited powers of attorney to IRS Chief Trial Counsel's office since you decided to lie to them about that and many other matters.

http://riverdeepbook.blogspot.com/2015/09/the-declarations-leonard-cohen-has.html

I would like to point out that your obsession with my blog does not give you the right to criminally harass me, threaten witnesses, stalk and intimidate my sons, etc.  Only a rotten logician, like yourself, would believe that.  

Kelley Lynch

From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Fri, Sep 18, 2015 at 12:40 PM
Subject: FW: Pending motion to vacate renewal of J; this case alters my formerly expressed view of your motion
To: kelley.lynch.2010@gmail.com

Ms. Lynch,

I previously told you that I felt your pending motion to vacate had already been litigated. Twice.

I found a case that caused me to rethink that view. I passed it on to you. It helps your position, if you can get beyond the urge to use every email from me as a projectile and actually read digest and think about the case as well as the difference between a presumption affecting the production of evidence and a presumption affecting the burden of proof. (See Ev. Code 647; 602.)

I told you something that I concluded was wrong.

I corrected it.

The rest is up to you.

From: Stephen R. Gianelli [mailto:stephengianelli@gmail.com] 
Sent: Friday, September 18, 2015 12:48 PM
To: kelley.lynch.2010@gmail.com
Subject: Pending motion to vacate renewal of J; this case alters my formerly expressed view of your motion

See the attached case, Fidelity Creditor Service, Inc. v. Browne, FYI. Under its reasoning:

1. A motion to vacate the renewal of a judgment is NOT CONSIDERED to be a motion to vacate the judgment and is therefore not governed by time limits for motions to vacate the judgment such as those provided by section 473.5. This is because the motion does not seek to affect the judgment itself but only the renewal period. For the same reasons one would have AN ARGUMENT that a motion to vacate the renewal of a judgment is not a motion to reconsider a previously denied motion to vacate the judgment itself, but the case does not address that issue.

2. The moving party need not demonstrate the existence of a meritorious defense.

3. There is no “due diligence” requirement in filing the motion “earlier” (e.g., after learning of the judgment) because the legislature has explicitly provided for a 30-day time window from the date mailing  of notice of renewal of the motion to file it, and the motion is either filled within that statutory time or it is not.

4. Unlike in the cited case (attached), the fact of valid service is DISPUTED – so the moving party still needs to overcome the presumption of valid service created by the proof of service filed by the registered process server. And Judge Hess could still defeat the motion by weighing the evidence and concluding that the moving declarations failed to overcome the presumption in favor of proper service.

5. Res judicata should not be a factor because NO ORDER SETTING FORTH JUDGE HESS’ JANUARY 17, 2014 RULING DENYING THE MOTION TO VACATE was ever signed or filed – let alone served. (See the on-line docket “case summary”.) A proposed order was lodged, but NO SIGNED ORDER WAS EVER FILED AND IT WOULD APPEAR THAT NO ORDER WAS EVER SIGNED. Since there was no ORDER DENYING THE MOTION entered, no final, appealable order was ever entered – and (arguably) therefore there was no prior finding of proper service.

From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Fri, Sep 18, 2015 at 12:41 PM
Subject: FW: Operation of presumption afforded by Evidence Code 647 to motion to vacate renewal for lack of service
To: kelley.lynch.2010@gmail.com

Again, you may wish to re-read this email as well.

From: Stephen R. Gianelli [mailto:stephengianelli@gmail.com] 
Sent: Friday, September 18, 2015 1:50 PM
To: kelley.lynch.2010@gmail.com
Subject: Operation of presumption afforded by Evidence Code 647 to motion to vacate renewal for lack of service

California Evidence Code 647.  The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.

This means that the moving party has the initial burden of coming forward with admissible evidence of lack of service. Once that is done, the presumption in favor of service DISAPPEARS and the issue is decided as if there were no presumption. (See Evidence Code 602 and below).

Read: (NOTE NAME OF TRIAL JUDGE):

Palm Property Investments, LLC v. Yadegar – Court erred in not applying evidentiary presumption of a registered process server’s proof of service under Evidence Code § 647

Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419

[No. B224040. Second Dist., Div. Two. May 3, 2011.]

PALM PROPERTY INVESTMENTS, LLC, Plaintiff and Appellant, v. FEREYDOON YADEGAR et al., Defendants and Respondents.

(Superior Court of Los Angeles County, No. BC360360, Kenneth R. Freeman, Judge.)

(Opinion by Doi Todd, Acting P. J., with Ashmann-Gerst, J., and Chavez, J., concurring.)

COUNSEL

Law Offices of Deborah Friedman, Deborah Friedman and Craig Mordoh, for Plaintiff and Appellant.

Law Offices of Ehsan Afaghi, Ehsan Afaghi and Firouzeh Simab, for Defendants and Respondents. [194 Cal.App.4th 1421]

OPINION

DOI TODD, Acting P. J.-

Plaintiff and appellant Palm Property Investments, LLC, appeals from a judgment entered in favor of defendants and respondents Fereydoon (Fred), Simin, Sara, Jacob and Saghar Yadegar (sometimes collectively the Yadegars) in an unlawful detainer action. The trial court ruled that appellant failed to meet its burden to show it satisfied the service requirements of Code of Civil Procedure section 1162. fn. 1 Appellant contends that the judgment must be reversed because the trial court should not have excluded the proof of service as hearsay and should have considered the effect of the Yadegars’ admission that they were served with a three-day notice to pay rent or quit.

We agree with appellant’s first contention and reverse. Because the three-day notice was served by a registered process server, the proof of service [194 Cal.App.4th 1422] should not have been excluded and Evidence Code section 647 applied to establish a presumption of the facts set forth therein.

FACTUAL AND PROCEDURAL BACKGROUND

The Yadegars’ Lease.

Since 2002, the Yadegars have leased a penthouse apartment in a seven-unit building located at 408 North Palm Drive in Beverly Hills (Property). On August 12, 2002, the Yadegars entered into a lease agreement (Lease) with the Teitler Family Trust (Trust), then the owner of the Property. The first two pages of the Lease were a standard form lease drafted by the Trust’s representative, Tracy P. Pieper (Pieper), and the third was a one-page addendum drafted by Fred Yadegar (Fred). The standard form portion of the Lease indicated a lease term of one year and a rental amount of $3,500 per month. The one-page addendum modified those terms, extending the lease term to three years and increasing the rent to $3,600 per month in the second year and $3,700 per month in the third year.

On March 30, 2003, Pieper and Fred entered into a second addendum to the Lease, which modified the rent amount according to a sliding scale that corresponded to the number of months in advance rent was paid. On June 23, 2003, Pieper and Yadegar entered into a third addendum, which provided that rent would be reduced to $32,000 annually in exchange for a 12-month advance rent payment, with the Yadegars receiving credit for a previous $18,000 prepayment. The third addendum also provided that there would be no rent increases during the term of the Lease and extended the lease term for five years to November 30, 2010, with one option to extend the Lease for an additional five years to November 30, 2015.

Prior Litigation.

In December 2003, Enpalm, LLC, and Pico 26, LLC (collectively Enpalm), acquired the Property from the Trust. Alleging that it was unaware of the Yadegars’ long-term lease at the time it purchased the Property, Enpalm filed its first action against the Trust and the Yadegars in August 2004. The trial court granted the Trust’s and the Yadegars’ motion for judgment in June 2006.

Enpalm then filed an unlawful detainer action against the Yadegars, which challenged the authenticity of the Lease. In a statement of decision following a bench trial, the trial court ruled that the third addendum to the Lease was enforceable against Enpalm. Accordingly, it found that neither a three-day nor a 30-day notice to quit was appropriate, because the Yadegars were not in violation of the Lease and were operating under a Lease that did not expire [194 Cal.App.4th 1423] until 2010. Judgment was entered in June 2007. In January 2008, the trial court ordered Enpalm to pay the Yadegars $109,062.50 in attorney fees and $1,993 in costs.

In an unpublished opinion, we affirmed, rejecting Enpalm’s argument that the term of the Yadegars’ tenancy had been litigated in the first action and determined to be month-to-month. (Enpalm v. Yadegar, case No. B201175, filed December 30, 2008.) In April 2009 the trial court entered an award of attorney fees and costs on appeal, ordering Enpalm to pay the Yadegars $70,770 in attorney fees and $552.25 in costs.

While the appeal was pending, the Yadegars learned that the Property was in foreclosure and advised the deed of trust holders of their intention to withhold their rent as an offset to the amounts due them under the judgments. Beginning in March 2009, the Yadegars stopped paying rent in order to offset the judgment amounts owing from Enpalm.

Wilmington Park, Inc. acquired the Property through foreclosure. After the Yadegars informed the new owner of the offset, it neither sued the Yadegars to collect rent nor took any other action to obtain rental payments from the Yadegars.

The Instant Unlawful Detainer Action.

Appellant purchased the property in October 2009. On November 4, 2009, a registered process server served the Yadegars with a three-day notice to pay rent or quit that stated that the amount of rent due was $4,899.99. In response, the Yadegars, via their attorney, wrote to appellant on November 5, 2009, stating that they had been served with a three-day notice, outlining the history of the litigation between them and the prior owners of the Property, disputing that any amount was then due and offering to pay $17,000 as representing the balance of the annual rent due from October 2009 to April 2010.

Appellant filed an unlawful detainer action on November 12, 2009. It alleged that the Yadegars entered into a one-year lease on September 1, 2002 that had become a month-to-month lease, and that they had agreed to pay $3,500 per month in rent. It further alleged that it posted on the premises and mailed a three-day notice to pay rent or quit on November 4, 2009, and that the amount of rent due at that time was $4,899.99. Attached to the complaint were copies of the Lease, including the one-page lease addendum entered into simultaneously with the Lease; the second addendum signed March 20, 2003; the third addendum dated June 23, 2003; the three-day notice to pay rent or quit; and the proof of service of the three-day notice. [194 Cal.App.4th 1424]

The Yadegars filed a verified answer, denying the allegations and asserting several affirmative defenses.

Following a January 5, 2010 bench trial, the trial court granted the Yadegars’ motion for judgment brought pursuant to section 631.8, reasoning that appellant had failed to establish a prima facie case as to any cause of action alleged. Specifically, relying on Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511 (Liebovich), the trial court sustained the Yadegars’ objection to the admission of the proof of service of the three-day notice and found that appellant failed to meet its burden to show that the notice was properly served. Judgment was entered in March 2010 fn. 2 and this appeal followed.

DISCUSSION

Appellant contends that it met its burden to show proper service of the three-day notice, arguing that the trial court abused its discretion by declining to admit into evidence the process server’s declaration and erroneously ruled that the Yadegars’ admission of receipt of the notice was insufficient to establish proper service. Though we cannot conclude that appellant met its burden of proof to show proper service, the proof of service should have been admitted and accorded a presumption of the facts stated therein. For this reason, we must reverse the judgment and remand the matter for retrial. fn. 3

I. Applicable Unlawful Detainer Principles.

[1] “Unlawful detainer is a unique body of law and its procedures are entirely separate from the procedures pertaining to civil actions generally.” (Losornio v. Motta (1998) 67 Cal.App.4th 110, 115.) Sections 1159 through 1179a comprise what is commonly known as the Unlawful Detainer Act; the statutes are “broad in scope and available to both lessors and lessees who have suffered certain wrongs committed by the other.” (Losornio v. Motta, supra, at p. 113.) An unlawful detainer action “‘is [194 Cal.App.4th 1425] a statutory proceeding and is governed solely by the provisions of the statute creating it.’ [Citations.] As special proceedings are created and authorized by statute, the jurisdiction over any special proceeding is limited by the terms and conditions of the statute under which it was authorized [citation], and . . . . [t]he statutory procedure must be strictly followed. [Citations.]” (Kwok v. Bergren (1982) 130 Cal.App.3d 596, 599–600.)

[2] According to the statutes governing unlawful detainer proceedings, “‘a tenant is entitled to a three-day notice to pay rent or quit which may be enforced by summary legal proceedings (Code Civ. Proc., § 1161) but this notice is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions. (Code Civ. Proc., § 1162.)'” (Kwok v. Bergren, supra, 130 Cal.App.3d at p. 600, quoting Lamey v. Masciotra (1969) 273 Cal.App.2d 709, 713.) Stated another way, “[p]roper service on the lessee of a valid three-day notice to pay rent or quit is an essential prerequisite to a judgment declaring a lessor’s right to possession under section 1161, subdivision 2. [Citations.]” (Liebovich, supra, 56 Cal.App.4th at p. 513.) “A lessor must allege and prove proper service of the requisite notice. [Citations.] Absent evidence the requisite notice was properly served pursuant to section 1162, no judgment for possession can be obtained. [Citations.]” (Ibid.)

[3] Former section 1162 specifies three ways in which service of the three-day notice may be effected on a residential tenant: “1. By delivering a copy to the tenant personally. [¶] 2. If he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence. [¶] 3. If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated.” As explained in Liebovich, supra, 56 Cal.App.4th at page 514, “[w]hen the fact of service is contested, compliance with one of these methods must be shown or the judgment must be reversed.”

II. Because the Yadegars Were Served By a Registered Process Server, Evidence Code Section 647 Applied to Accord a Presumption to the Facts Stated in the Proof of Service.

In an appeal from an unlawful detainer judgment, “‘[w]e review the trial court’s findings of fact to determine whether they are supported by substantial evidence. [Citation.] To the extent the trial court drew conclusions of law [194 Cal.App.4th 1426] based upon its findings of fact, we review those conclusions of law de novo. [Citation.]'” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) Moreover, we review the trial court’s evidentiary rulings for an abuse of discretion. (E.g., Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.)

The trial court here relied exclusively on Liebovich, supra, 56 Cal.App.4th 511, to conclude both that the proof of service was inadmissible hearsay and that the Yadegars’ November 5, 2009 letter acknowledging service of the three-day notice was insufficient evidence of appellant’s compliance with section 1162. In Liebovich, the landlord served the tenant with a three-day notice to pay rent or quit via certified mail, and tenant denied that he ever received the notice. To meet its burden to show compliance with section 1162, the landlord offered evidence at trial comprised of an affidavit of service by certified mail and a certified mail return receipt with an illegible signature. (Liebovich, supra, at p. 514.) Though the trial court entered judgment for the landlord on the basis of this evidence, the appellate court reversed, holding that the landlord did not provide sufficient evidence of proper service in accordance with section 1162. (Liebovich, supra, at p. 514.)

The Liebovich court determined “that the affidavit of service alone (putting aside questions concerning the return receipt) was insufficient to prove the controverted fact of service. [Citations.] Affidavits of service may not be relied on at trial to prove a three-day notice was served pursuant to section 1162; testimony of the person who made the service is required. [Citation.]” (Liebovich, supra, 56 Cal.App.4th at p. 514.) The court adopted the reasoning of Lacrabere v. Wise (1904) 141 Cal. 554, 556 (Lacrabere), where the court determined that the method of proof sanctioned by section 2009 fn. 4 has no application where proper proof of service constitutes an element of the landlord’s claim directly in controversy. (Liebovich, supra, at p. 515.)

While on its face Liebovich would appear to dispose of appellant’s contention that the affidavit of service should have been admitted as adequate proof of statutory compliance, this matter does not fall squarely within the confines of that authority. A dispositive distinction here is that service was effected by a registered process server. In contrast, there is no indication in either Liebovich or Lacrabere that the affidavits of service were signed or service was performed by a registered process server. For that reason, neither case had reason to address the impact of Evidence Code section 647, which provides: “The return of a process server registered pursuant to [194 Cal.App.4th 1427] Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” fn. 5 Although appellant has not cited and we have not located any California case applying Evidence Code section 647 in an unlawful detainer action, courts routinely apply other Evidence Code provisions in unlawful detainer actions. (E.g., Plaza Freeway Ltd. Partnership v. First Mountain Bank (2000) 81 Cal.App.4th 616, 621–622 [applying Evid. Code, § 622 in an unlawful detainer action]; Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1137 [applying Evid. Code, § 352 in an unlawful detainer action].) Moreover, nothing in the governing statutory scheme suggests that the Evidence Code should not apply to unlawful detainer proceedings. (See generally, §§ 1159–1179a.)

Consistent with this authority, at least one treatise assumes that the Evidence Code section 647 presumption would apply in an unlawful detainer action notwithstanding Liebovich, supra, 56 Cal.App.4th 511: “Normally, the landlord will have to produce the person who served the notice to testify to the facts of service. When the issue is controverted, proof by affidavit alone will not suffice. [Citations.] [¶] . . . However, if the notice was served by a registered process server [citation], plaintiff may take advantage of a statutory presumption: The registered process server’s proof of service can be introduced as a business record [citation], thereby creating a presumption affecting defendant’s burden of producing evidence. [Citations.] [¶] If defendant does not introduce rebuttal evidence, the trier of fact must find for plaintiff in accordance with the presumption. Conversely, the presumption is dispelled by defendant’s introduction of rebuttal evidence, and the burden shifts back to plaintiff to put the person who served the notice on the stand to testify to proper service.” (Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2010) ¶¶ 9:204.1-9:204.2, p. 9-54 (rev. # 1, 2009), italics omitted.)

[4] We agree that where service is carried out by a registered process server, Evidence Code section 647 applies to eliminate the necessity of calling the process server as a witness at trial. This conclusion is consistent with the purpose of the unlawful detainer procedure to afford a relatively simple and speedy remedy for specific landlord-tenant disputes. (See Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 151.) [194 Cal.App.4th 1428] Accordingly, we conclude the trial court erred by failing to apply the evidentiary presumption afforded by Evidence Code section 647. The excluded proof of service established that a registered California process server served the three-day notice. Moreover, the proof of service indicated that the Yadegars were served in accordance with the requirements of section 1162, subdivision (3). (See Nourafchan v. Miner (1985) 169 Cal.App.3d 746, 750–751 [§ 1162 does not require a showing of reasonable diligence in attempting personal service before resorting to the alternate method of service by posting and mailing], disapproved on another point in Minelian v. Manzella (1989) 215 Cal.App.3d 457, 464; Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d.Supp. 1, 6 [same].)

We reject the Yadegars’ argument that application of the presumption would have made no difference; they contend that they overcame any evidentiary presumption by denying in their verified answer that they had been served with the three-day notice. Under Evidence Code section 647, the proof of service “establishes a presumption, affecting the burden of producing evidence, of the facts stated in àthe return.” As explained in Evidence Code section 604, “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” Thus, the Yadegars were required to come forth with evidence–beyond their answer–in order to overcome the presumption. (See, e.g., Farr v. County of Nevada (2010) 187 Cal.App.4th 669, 680–681 [“if a presumption affecting the burden of producing evidence ‘applies to a proposition, the proponent of the proposition need not prove it unless the opposing party produces evidence undermining it, in which case the presumption is disregarded and the trier of fact must decide the question without regard to it'”]; People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact”].) The Yadegars offered no evidence to show that they were not properly served and instead relied on their answer and appellant’s asserted failure to satisfy its burden of proof. On retrial, they will have the opportunity to present evidence to rebut the presumption afforded by Evidence Code section 647. (See Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1481 [upon credible evidence that document was never received, presumption of receipt from mailing “ceased to exist”].) [194 Cal.App.4th 1429]

DISPOSITION

The judgment is reversed and the matter is remanded for retrial in accordance with the views expressed herein. Appellant is awarded its costs on appeal.

Ashmann-Gerst, J., and Chavez, J., concurred.

FN 1. Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

FN 2. Although the matter was transferred to Department 64 in the Central District of the Superior Court of Los Angeles County because it was deemed related to the prior unlawful detainer action, appellant obtained a default judgment in the Beverly Hills courthouse where the action had been originally filed. The Yadegars later successfully moved to set aside the default judgment.

FN 3. In view of our conclusion that the proof of service was erroneously excluded from evidence, we need not address appellant’s alternative contention that the Yadegars’ November 5, 2009 letter established proper service. In any event, we would not find that the Yadegars’ statement that they had been “served” sufficient to establish appellant’s strict compliance with section 1162. (Compare University of So. Cal. v. Weiss (1962) 208 Cal.App.2d 759, 768-769 [tenant’s admitting receipt of notice deemed sufficient where mailing alone constituted personal service].)

FN 4. Section 2009 provides in pertinent part: “An affidavit may be used . . . to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings . . . .”

FN 5. Contrary to the Yadegars’ argument we should reject appellant’s argument because it is made for the first time on appeal, appellant did reference Evidence Code section 647 at trial.

From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Fri, Sep 18, 2015 at 11:44 AM
Subject: The Point
To: kelley.lynch.2010@gmail.com

The point is, Ms. Lynch, that – out of intellectual integrity – I informed you of a case that is highly helpful to your position in your pending motion.

I laid it out for you chapter and verse in simple language.

The only thing that this case does not resolve for you is the credibility conflict between the declaration of service and your declarations, but procedurally, all of your other potential roadblocks are solved.

But like an Aborigine who is gifted a cellphone and elects to use it as a rock to skip across a pond, you squandered the opening.

It would have been much more effective if you had waited until the opposition was filed and then used the case in rebuttal, but now you have tipped your hand and the opposition will surely deal with this case, instead of ignoring the points raised. Instead, you are so closed minded you actually cannot see the utility of this case at all….amazing.

Oh well, you can lead a horse to water…

Never let it be said though that I did not give you accurate information.

Friday, September 18, 2015

And the Point Is?

From: Kelley Lynch <kelley.lynch.2013@gmail.com>
Date: Fri, Sep 18, 2015 at 10:18 AM
Subject: Fwd: Pending motion to vacate renewal of J; this case alters my formerly expressed view of your motion
To: "*IRS.Commisioner" <*IRS.Commisioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, "Division, Criminal" <Criminal.Division@usdoj.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>, MollyHale <MollyHale@ucia.gov>, nsapao <nsapao@nsa.gov>, fsb <fsb@fsb.ru>, rbyucaipa <rbyucaipa@yahoo.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, "glenn.greenwald" <glenn.greenwald@firstlook.org>, Harriet Ryan <harriet.ryan@latimes.com>, "hailey.branson" <hailey.branson@latimes.com>, Stan Garnett <stan.garnett@gmail.com>, Mike Feuer <mike.feuer@lacity.org>, "mayor.garcetti" <mayor.garcetti@lacity.org>, Opla-pd-los-occ <OPLA-PD-LOS-OCC@ice.dhs.gov>, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, Whistleblower <whistleblower@judiciary-rep.senate.gov>, Attacheottawa <AttacheOttawa@ci.irs.gov>, tips@radaronline.com

IRS, FBI, and DOJ,

I've asked Rice, rather than Criminal Stalker Gianelli, to respond to the issues raised in my motion to vacate the renewal of judgment.  Who cares what the criminal thinks.  I've already addressed Fidelity v. Brown in my motion.  Rice, in keeping with her predictable behavior, will serve the Opposition precisely 9 days before the October 6th hearing.  Gianelli appears to be assisting her with research on these issues.  I already advised Hess that his January 2014 order wasn't filed with the court and I wasn't served the order either.  Jeffrey Korn promised he would serve it and failed to do so.  I also didn't receive the proposed order, with request to comment, when that was sent.  I am aware that the final order wasn't registered.  So what's the criminal's point?  I am aware that there is no finding re. proper service due to all of this.  These people have a lot of nerve insulting someone who is pro per for the sole reason that Cohen bankrupted me and stole my share of intellectual property via default while withholding commissions due me for services rendered.  LA Superior Court seems to also condone slave labor.

Kelley

---------- Forwarded message ----------
From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Fri, Sep 18, 2015 at 2:47 AM
Subject: Pending motion to vacate renewal of J; this case alters my formerly expressed view of your motion
To: kelley.lynch.2010@gmail.com

See the attached case, Fidelity Creditor Service, Inc. v. Browne, FYI. Under its reasoning:

1. A motion to vacate the renewal of a judgment is NOT CONSIDERED to be a motion to vacate the judgment and is therefore not governed by time limits for motions to vacate the judgment such as those provided by section 473.5. This is because the motion does not seek to affect the judgment itself but only the renewal period. For the same reasons one would have AN ARGUMENT that a motion to vacate the renewal of a judgment is not a motion to reconsider a previously denied motion to vacate the judgment itself, but the case does not address that issue.

2. The moving party need not demonstrate the existence of a meritorious defense.

3. There is no “due diligence” requirement in filing the motion “earlier” (e.g., after learning of the judgment) because the legislature has explicitly provided for a 30-day time window from the date mailing  of notice of renewal of the motion to file it, and the motion is either filled within that statutory time or it is not.

4. Unlike in the cited case (attached), the fact of valid service is DISPUTED – so the moving party still needs to overcome the presumption of valid service created by the proof of service filed by the registered process server. And Judge Hess could still defeat the motion by weighing the evidence and concluding that the moving declarations failed to overcome the presumption in favor of proper service.

5. Res judicata should not be a factor because NO ORDER SETTING FORTH JUDGE HESS’ JANUARY 17, 2014 RULING DENYING THE MOTION TO VACATE was ever signed or filed – let alone served. (See the on-line docket “case summary”.) A proposed order was lodged, but NO SIGNED ORDER WAS EVER FILED AND IT WOULD APPEAR THAT NO ORDER WAS EVER SIGNED. Since there was no ORDER DENYING THE MOTION entered, no final, appealable order was ever entered – and (arguably) therefore there was no prior finding of proper service.

From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Fri, Sep 18, 2015 at 2:47 AM
Subject: Pending motion to vacate renewal of J; this case alters my formerly expressed view of your motion
To: kelley.lynch.2010@gmail.com

See the attached case, Fidelity Creditor Service, Inc. v. Browne, FYI. Under its reasoning:

1. A motion to vacate the renewal of a judgment is NOT CONSIDERED to be a motion to vacate the judgment and is therefore not governed by time limits for motions to vacate the judgment such as those provided by section 473.5. This is because the motion does not seek to affect the judgment itself but only the renewal period. For the same reasons one would have AN ARGUMENT that a motion to vacate the renewal of a judgment is not a motion to reconsider a previously denied motion to vacate the judgment itself, but the case does not address that issue.

2. The moving party need not demonstrate the existence of a meritorious defense.

3. There is no “due diligence” requirement in filing the motion “earlier” (e.g., after learning of the judgment) because the legislature has explicitly provided for a 30-day time window from the date mailing  of notice of renewal of the motion to file it, and the motion is either filled within that statutory time or it is not.

4. Unlike in the cited case (attached), the fact of valid service is DISPUTED – so the moving party still needs to overcome the presumption of valid service created by the proof of service filed by the registered process server. And Judge Hess could still defeat the motion by weighing the evidence and concluding that the moving declarations failed to overcome the presumption in favor of proper service.

5. Res judicata should not be a factor because NO ORDER SETTING FORTH JUDGE HESS’ JANUARY 17, 2014 RULING DENYING THE MOTION TO VACATE was ever signed or filed – let alone served. (See the on-line docket “case summary”.) A proposed order was lodged, but NO SIGNED ORDER WAS EVER FILED AND IT WOULD APPEAR THAT NO ORDER WAS EVER SIGNED. Since there was no ORDER DENYING THE MOTION entered, no final, appealable order was ever entered – and (arguably) therefore there was no prior finding of proper service.

From: Stephen R. Gianelli <stephengianelli@gmail.com>
Date: Fri, Sep 18, 2015 at 3:50 AM
Subject: Operation of presumption afforded by Evidence Code 647 to motion to vacate renewal for lack of service
To: kelley.lynch.2010@gmail.com

California Evidence Code 647.  The return of a process server registered pursuant to Chapter

16 (commencing with Section 22350) of Division 8 of the Business and

Professions Code upon process or notice establishes a presumption,

affecting the burden of producing evidence, of the facts stated in

the return.

This means that the moving party has the initial burden of coming forward with admissible evidence of lack of service. Once that is done, the presumption in favor of service DISAPPEARS and the issue is decided as if there were no presumption. (See Evidence Code 602 and below).

Read: (NOTE NAME OF TRIAL JUDGE):

Palm Property Investments, LLC v. Yadegar – Court erred in not applying evidentiary presumption of a registered process server’s proof of service under Evidence Code § 647

Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419

[No. B224040. Second Dist., Div. Two. May 3, 2011.]

PALM PROPERTY INVESTMENTS, LLC, Plaintiff and Appellant, v. FEREYDOON YADEGAR et al., Defendants and Respondents.

(Superior Court of Los Angeles County, No. BC360360, Kenneth R. Freeman, Judge.)

(Opinion by Doi Todd, Acting P. J., with Ashmann-Gerst, J., and Chavez, J., concurring.)

COUNSEL

Law Offices of Deborah Friedman, Deborah Friedman and Craig Mordoh, for Plaintiff and Appellant.

Law Offices of Ehsan Afaghi, Ehsan Afaghi and Firouzeh Simab, for Defendants and Respondents. [194 Cal.App.4th 1421]

OPINION

DOI TODD, Acting P. J.-

Plaintiff and appellant Palm Property Investments, LLC, appeals from a judgment entered in favor of defendants and respondents Fereydoon (Fred), Simin, Sara, Jacob and Saghar Yadegar (sometimes collectively the Yadegars) in an unlawful detainer action. The trial court ruled that appellant failed to meet its burden to show it satisfied the service requirements of Code of Civil Procedure section 1162. fn. 1 Appellant contends that the judgment must be reversed because the trial court should not have excluded the proof of service as hearsay and should have considered the effect of the Yadegars’ admission that they were served with a three-day notice to pay rent or quit.

We agree with appellant’s first contention and reverse. Because the three-day notice was served by a registered process server, the proof of service [194 Cal.App.4th 1422] should not have been excluded and Evidence Code section 647 applied to establish a presumption of the facts set forth therein.

FACTUAL AND PROCEDURAL BACKGROUND

The Yadegars’ Lease.

Since 2002, the Yadegars have leased a penthouse apartment in a seven-unit building located at 408 North Palm Drive in Beverly Hills (Property). On August 12, 2002, the Yadegars entered into a lease agreement (Lease) with the Teitler Family Trust (Trust), then the owner of the Property. The first two pages of the Lease were a standard form lease drafted by the Trust’s representative, Tracy P. Pieper (Pieper), and the third was a one-page addendum drafted by Fred Yadegar (Fred). The standard form portion of the Lease indicated a lease term of one year and a rental amount of $3,500 per month. The one-page addendum modified those terms, extending the lease term to three years and increasing the rent to $3,600 per month in the second year and $3,700 per month in the third year.

On March 30, 2003, Pieper and Fred entered into a second addendum to the Lease, which modified the rent amount according to a sliding scale that corresponded to the number of months in advance rent was paid. On June 23, 2003, Pieper and Yadegar entered into a third addendum, which provided that rent would be reduced to $32,000 annually in exchange for a 12-month advance rent payment, with the Yadegars receiving credit for a previous $18,000 prepayment. The third addendum also provided that there would be no rent increases during the term of the Lease and extended the lease term for five years to November 30, 2010, with one option to extend the Lease for an additional five years to November 30, 2015.

Prior Litigation.

In December 2003, Enpalm, LLC, and Pico 26, LLC (collectively Enpalm), acquired the Property from the Trust. Alleging that it was unaware of the Yadegars’ long-term lease at the time it purchased the Property, Enpalm filed its first action against the Trust and the Yadegars in August 2004. The trial court granted the Trust’s and the Yadegars’ motion for judgment in June 2006.

Enpalm then filed an unlawful detainer action against the Yadegars, which challenged the authenticity of the Lease. In a statement of decision following a bench trial, the trial court ruled that the third addendum to the Lease was enforceable against Enpalm. Accordingly, it found that neither a three-day nor a 30-day notice to quit was appropriate, because the Yadegars were not in violation of the Lease and were operating under a Lease that did not expire [194 Cal.App.4th 1423] until 2010. Judgment was entered in June 2007. In January 2008, the trial court ordered Enpalm to pay the Yadegars $109,062.50 in attorney fees and $1,993 in costs.

In an unpublished opinion, we affirmed, rejecting Enpalm’s argument that the term of the Yadegars’ tenancy had been litigated in the first action and determined to be month-to-month. (Enpalm v. Yadegar, case No. B201175, filed December 30, 2008.) In April 2009 the trial court entered an award of attorney fees and costs on appeal, ordering Enpalm to pay the Yadegars $70,770 in attorney fees and $552.25 in costs.

While the appeal was pending, the Yadegars learned that the Property was in foreclosure and advised the deed of trust holders of their intention to withhold their rent as an offset to the amounts due them under the judgments. Beginning in March 2009, the Yadegars stopped paying rent in order to offset the judgment amounts owing from Enpalm.

Wilmington Park, Inc. acquired the Property through foreclosure. After the Yadegars informed the new owner of the offset, it neither sued the Yadegars to collect rent nor took any other action to obtain rental payments from the Yadegars.

The Instant Unlawful Detainer Action.

Appellant purchased the property in October 2009. On November 4, 2009, a registered process server served the Yadegars with a three-day notice to pay rent or quit that stated that the amount of rent due was $4,899.99. In response, the Yadegars, via their attorney, wrote to appellant on November 5, 2009, stating that they had been served with a three-day notice, outlining the history of the litigation between them and the prior owners of the Property, disputing that any amount was then due and offering to pay $17,000 as representing the balance of the annual rent due from October 2009 to April 2010.

Appellant filed an unlawful detainer action on November 12, 2009. It alleged that the Yadegars entered into a one-year lease on September 1, 2002 that had become a month-to-month lease, and that they had agreed to pay $3,500 per month in rent. It further alleged that it posted on the premises and mailed a three-day notice to pay rent or quit on November 4, 2009, and that the amount of rent due at that time was $4,899.99. Attached to the complaint were copies of the Lease, including the one-page lease addendum entered into simultaneously with the Lease; the second addendum signed March 20, 2003; the third addendum dated June 23, 2003; the three-day notice to pay rent or quit; and the proof of service of the three-day notice. [194 Cal.App.4th 1424]

The Yadegars filed a verified answer, denying the allegations and asserting several affirmative defenses.

Following a January 5, 2010 bench trial, the trial court granted the Yadegars’ motion for judgment brought pursuant to section 631.8, reasoning that appellant had failed to establish a prima facie case as to any cause of action alleged. Specifically, relying on Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511 (Liebovich), the trial court sustained the Yadegars’ objection to the admission of the proof of service of the three-day notice and found that appellant failed to meet its burden to show that the notice was properly served. Judgment was entered in March 2010 fn. 2 and this appeal followed.

DISCUSSION

Appellant contends that it met its burden to show proper service of the three-day notice, arguing that the trial court abused its discretion by declining to admit into evidence the process server’s declaration and erroneously ruled that the Yadegars’ admission of receipt of the notice was insufficient to establish proper service. Though we cannot conclude that appellant met its burden of proof to show proper service, the proof of service should have been admitted and accorded a presumption of the facts stated therein. For this reason, we must reverse the judgment and remand the matter for retrial. fn. 3

I. Applicable Unlawful Detainer Principles.

[1] “Unlawful detainer is a unique body of law and its procedures are entirely separate from the procedures pertaining to civil actions generally.” (Losornio v. Motta (1998) 67 Cal.App.4th 110, 115.) Sections 1159 through 1179a comprise what is commonly known as the Unlawful Detainer Act; the statutes are “broad in scope and available to both lessors and lessees who have suffered certain wrongs committed by the other.” (Losornio v. Motta, supra, at p. 113.) An unlawful detainer action “‘is [194 Cal.App.4th 1425] a statutory proceeding and is governed solely by the provisions of the statute creating it.’ [Citations.] As special proceedings are created and authorized by statute, the jurisdiction over any special proceeding is limited by the terms and conditions of the statute under which it was authorized [citation], and . . . . [t]he statutory procedure must be strictly followed. [Citations.]” (Kwok v. Bergren (1982) 130 Cal.App.3d 596, 599–600.)

[2] According to the statutes governing unlawful detainer proceedings, “‘a tenant is entitled to a three-day notice to pay rent or quit which may be enforced by summary legal proceedings (Code Civ. Proc., § 1161) but this notice is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions. (Code Civ. Proc., § 1162.)'” (Kwok v. Bergren, supra, 130 Cal.App.3d at p. 600, quoting Lamey v. Masciotra (1969) 273 Cal.App.2d 709, 713.) Stated another way, “[p]roper service on the lessee of a valid three-day notice to pay rent or quit is an essential prerequisite to a judgment declaring a lessor’s right to possession under section 1161, subdivision 2. [Citations.]” (Liebovich, supra, 56 Cal.App.4th at p. 513.) “A lessor must allege and prove proper service of the requisite notice. [Citations.] Absent evidence the requisite notice was properly served pursuant to section 1162, no judgment for possession can be obtained. [Citations.]” (Ibid.)

[3] Former section 1162 specifies three ways in which service of the three-day notice may be effected on a residential tenant: “1. By delivering a copy to the tenant personally. [¶] 2. If he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence. [¶] 3. If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated.” As explained in Liebovich, supra, 56 Cal.App.4th at page 514, “[w]hen the fact of service is contested, compliance with one of these methods must be shown or the judgment must be reversed.”

II. Because the Yadegars Were Served By a Registered Process Server, Evidence Code Section 647 Applied to Accord a Presumption to the Facts Stated in the Proof of Service.

In an appeal from an unlawful detainer judgment, “‘[w]e review the trial court’s findings of fact to determine whether they are supported by substantial evidence. [Citation.] To the extent the trial court drew conclusions of law [194 Cal.App.4th 1426] based upon its findings of fact, we review those conclusions of law de novo. [Citation.]'” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.) Moreover, we review the trial court’s evidentiary rulings for an abuse of discretion. (E.g., Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885.)

The trial court here relied exclusively on Liebovich, supra, 56 Cal.App.4th 511, to conclude both that the proof of service was inadmissible hearsay and that the Yadegars’ November 5, 2009 letter acknowledging service of the three-day notice was insufficient evidence of appellant’s compliance with section 1162. In Liebovich, the landlord served the tenant with a three-day notice to pay rent or quit via certified mail, and tenant denied that he ever received the notice. To meet its burden to show compliance with section 1162, the landlord offered evidence at trial comprised of an affidavit of service by certified mail and a certified mail return receipt with an illegible signature. (Liebovich, supra, at p. 514.) Though the trial court entered judgment for the landlord on the basis of this evidence, the appellate court reversed, holding that the landlord did not provide sufficient evidence of proper service in accordance with section 1162. (Liebovich, supra, at p. 514.)

The Liebovich court determined “that the affidavit of service alone (putting aside questions concerning the return receipt) was insufficient to prove the controverted fact of service. [Citations.] Affidavits of service may not be relied on at trial to prove a three-day notice was served pursuant to section 1162; testimony of the person who made the service is required. [Citation.]” (Liebovich, supra, 56 Cal.App.4th at p. 514.) The court adopted the reasoning of Lacrabere v. Wise (1904) 141 Cal. 554, 556 (Lacrabere), where the court determined that the method of proof sanctioned by section 2009 fn. 4 has no application where proper proof of service constitutes an element of the landlord’s claim directly in controversy. (Liebovich, supra, at p. 515.)

While on its face Liebovich would appear to dispose of appellant’s contention that the affidavit of service should have been admitted as adequate proof of statutory compliance, this matter does not fall squarely within the confines of that authority. A dispositive distinction here is that service was effected by a registered process server. In contrast, there is no indication in either Liebovich or Lacrabere that the affidavits of service were signed or service was performed by a registered process server. For that reason, neither case had reason to address the impact of Evidence Code section 647, which provides: “The return of a process server registered pursuant to [194 Cal.App.4th 1427] Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” fn. 5 Although appellant has not cited and we have not located any California case applying Evidence Code section 647 in an unlawful detainer action, courts routinely apply other Evidence Code provisions in unlawful detainer actions. (E.g., Plaza Freeway Ltd. Partnership v. First Mountain Bank (2000) 81 Cal.App.4th 616, 621–622 [applying Evid. Code, § 622 in an unlawful detainer action]; Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1137 [applying Evid. Code, § 352 in an unlawful detainer action].) Moreover, nothing in the governing statutory scheme suggests that the Evidence Code should not apply to unlawful detainer proceedings. (See generally, §§ 1159–1179a.)

Consistent with this authority, at least one treatise assumes that the Evidence Code section 647 presumption would apply in an unlawful detainer action notwithstanding Liebovich, supra, 56 Cal.App.4th 511: “Normally, the landlord will have to produce the person who served the notice to testify to the facts of service. When the issue is controverted, proof by affidavit alone will not suffice. [Citations.] [¶] . . . However, if the notice was served by a registered process server [citation], plaintiff may take advantage of a statutory presumption: The registered process server’s proof of service can be introduced as a business record [citation], thereby creating a presumption affecting defendant’s burden of producing evidence. [Citations.] [¶] If defendant does not introduce rebuttal evidence, the trier of fact must find for plaintiff in accordance with the presumption. Conversely, the presumption is dispelled by defendant’s introduction of rebuttal evidence, and the burden shifts back to plaintiff to put the person who served the notice on the stand to testify to proper service.” (Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2010) ¶¶ 9:204.1-9:204.2, p. 9-54 (rev. # 1, 2009), italics omitted.)

[4] We agree that where service is carried out by a registered process server, Evidence Code section 647 applies to eliminate the necessity of calling the process server as a witness at trial. This conclusion is consistent with the purpose of the unlawful detainer procedure to afford a relatively simple and speedy remedy for specific landlord-tenant disputes. (See Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, 151.) [194 Cal.App.4th 1428] Accordingly, we conclude the trial court erred by failing to apply the evidentiary presumption afforded by Evidence Code section 647. The excluded proof of service established that a registered California process server served the three-day notice. Moreover, the proof of service indicated that the Yadegars were served in accordance with the requirements of section 1162, subdivision (3). (See Nourafchan v. Miner (1985) 169 Cal.App.3d 746, 750–751 [§ 1162 does not require a showing of reasonable diligence in attempting personal service before resorting to the alternate method of service by posting and mailing], disapproved on another point in Minelian v. Manzella (1989) 215 Cal.App.3d 457, 464; Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d.Supp. 1, 6 [same].)

We reject the Yadegars’ argument that application of the presumption would have made no difference; they contend that they overcame any evidentiary presumption by denying in their verified answer that they had been served with the three-day notice. Under Evidence Code section 647, the proof of service “establishes a presumption, affecting the burden of producing evidence, of the facts stated in àthe return.” As explained in Evidence Code section 604, “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” Thus, the Yadegars were required to come forth with evidence–beyond their answer–in order to overcome the presumption. (See, e.g., Farr v. County of Nevada (2010) 187 Cal.App.4th 669, 680–681 [“if a presumption affecting the burden of producing evidence ‘applies to a proposition, the proponent of the proposition need not prove it unless the opposing party produces evidence undermining it, in which case the presumption is disregarded and the trier of fact must decide the question without regard to it'”]; People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact”].) The Yadegars offered no evidence to show that they were not properly served and instead relied on their answer and appellant’s asserted failure to satisfy its burden of proof. On retrial, they will have the opportunity to present evidence to rebut the presumption afforded by Evidence Code section 647. (See Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1481 [upon credible evidence that document was never received, presumption of receipt from mailing “ceased to exist”].) [194 Cal.App.4th 1429]

DISPOSITION

The judgment is reversed and the matter is remanded for retrial in accordance with the views expressed herein. Appellant is awarded its costs on appeal.

Ashmann-Gerst, J., and Chavez, J., concurred.

FN 1. Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

FN 2. Although the matter was transferred to Department 64 in the Central District of the Superior Court of Los Angeles County because it was deemed related to the prior unlawful detainer action, appellant obtained a default judgment in the Beverly Hills courthouse where the action had been originally filed. The Yadegars later successfully moved to set aside the default judgment.

FN 3. In view of our conclusion that the proof of service was erroneously excluded from evidence, we need not address appellant’s alternative contention that the Yadegars’ November 5, 2009 letter established proper service. In any event, we would not find that the Yadegars’ statement that they had been “served” sufficient to establish appellant’s strict compliance with section 1162. (Compare University of So. Cal. v. Weiss (1962) 208 Cal.App.2d 759, 768-769 [tenant’s admitting receipt of notice deemed sufficient where mailing alone constituted personal service].)

FN 4. Section 2009 provides in pertinent part: “An affidavit may be used . . . to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings . . . .”

FN 5. Contrary to the Yadegars’ argument we should reject appellant’s argument because it is made for the first time on appeal, appellant did reference Evidence Code section 647 at trial.